Giles v. McDonough

Case: 20-1096 Document: 41 Page: 1 Filed: 02/17/2021
United States Court of Appeals
for the Federal Circuit
______________________
DAVID M. GILES,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-1096
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3924, Senior Judge Robert N.
Davis.
______________________
Decided: February 17, 2021
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
DAVID PEHLKE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR.; JULIE HONAN, Y. KEN LEE, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Case: 20-1096 Document: 41 Page: 2 Filed: 02/17/2021
2 GILES v. MCDONOUGH
Before PROST, Chief Judge, CLEVENGER and TARANTO,
Circuit Judges.
CLEVENGER, Circuit Judge.
David M. Giles appeals from the final decision of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”), which rejected his request for an earlier ef-
fective date for the compensation he receives from the
Department of Veterans Affairs (“VA”) for his service-con-
nected chronic bipolar disorder with psychosis. Giles v.
Wilkie, No. 17-3924, 2019 WL 3422606, at *1 (Vet. App.
July 30, 2019). For the reasons set forth below, we affirm.
I
Mr. Giles is a veteran of the United States Army. He
served on active duty twice, between 1976 and 1982. He
later joined the United States Army Reserve, and reported
for active duty for training in the Reserve on June 3, 1984.
Shortly thereafter, he suffered mental problems, was hos-
pitalized, and was then later discharged in November
1984.
Mr. Giles initially filed a claim for a service-connected
nervous condition with the VA in March 1984. Shortly
thereafter, following a medical examination, he was diag-
nosed with a personality disorder. While his claim was
pending, he entered into his active duty for training. On his
first day of training, he precipitated a disturbance that led
his sergeant to question his mental stability, and Mr. Giles
was hospitalized. After a number of examinations, he was
diagnosed with an acute case of organic delusional syn-
drome, and then discharged from the Reserves in Novem-
ber 1984. In December 1984, the VA denied his claim for
service connection for a nervous condition, reasoning that
his diagnosed personality disorder did not qualify as a dis-
ability under the law. On December 2, 1985, Mr. Giles was
again hospitalized and given an admitting diagnosis of
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GILES v. MCDONOUGH 3
schizophrenia, paranoid type. Upon discharge from the
hospital on January 13, 1986, he was diagnosed with
chronic bipolar disorder, manic. Mr. Giles requested reo-
pening of the December 1984 denial of his claim and sub-
mitted additional evidence. On April 10, 1986, the VA
denied his request to reopen, reasoning that Mr. Giles pre-
sented no basis for relating his “neuropsychiatric disorder”
to military service.
Mr. Giles timely appealed the April 10, 1986 denial to
the Board of Veterans’ Appeals (“BVA”). The BVA’s April
6, 1987 decision affirmed the April 10 denial. After full re-
view of Mr. Giles’s medical records, the BVA concluded that
service connection was not warranted for the diagnosis of
personality disorder during his active duty service. The
BVA concluded that upon entry into active duty for train-
ing in the Reserves, Mr. Giles had manifestations of or-
ganic delusional syndrome, deemed due to alcohol and
cannabis abuse that admittedly occurred before entering
training, considered to be acute and apparently resolved
before his discharge from the hospital. The BVA ruled that
Mr. Giles’s bipolar disorder, manifested in December of
l985 and diagnosed as chronic in January 1986, was “not of
service onset.” J.A. 62. The BVA concluded that “[a]n ac-
quired psychiatric disorder was neither incurred in nor ag-
gravated by service nor may a psychosis be presumed to
have been incurred in active military service.” Id. The April
6, 1987 BVA decision was not appealed to the Veterans
Court by Mr. Giles, and thus became the final decision
denying his 1984 claim.
On March 31, 1995, Mr. Giles filed a claim with the VA
for service-connected Post Traumatic Stress Disorder. The
VA characterized his claim as a request to reopen his pre-
viously denied 1984 claim for service-connected psychiatric
disability. After review of his case upon reopening, the VA
awarded him service connection for chronic bipolar disor-
der with psychosis, effective the date he filed his claim. Mr.
Giles did not then, nor now, challenge the VA’s
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4 GILES v. MCDONOUGH
characterization of his March 31, 1995 claim or any aspect
of the award for bipolar disorder.
In July 2012, Mr. Giles filed a request to revise the
April 6, 1987 BVA decision on the ground that the decision
contained clear and unmistakable error (“CUE”) 1, because
the BVA failed to recognize Mr. Giles’s claim for benefits
on a presumptive basis under 38 C.F.R. § 3.303(b) for his
June 1984 diagnosis of organic delusional syndrome. 2 The
July 2012 filing was a follow-up to a previously filed CUE
request that the BVA had not acted upon.
1 CUE is an error of fact or law, “to which reasonable
minds could not differ,” that would have compelled a man-
ifestly different outcome in the case but for the error.
38 C.F.R. § 20.1403(a); see also Yates v. West, 213 F.3d
1372, 1375 (Fed. Cir. 2000). CUE is manifest when “either
the correct facts, as they were known at the time, were not
before the Board, or the statutory and regulatory provi-
sions extant at the time were incorrectly applied.”
38 C.F.R. § 20.1403(a). CUE serves to correct errors in the
BVA decision that have become final and thus are not sub-
ject to direct review.
2 Under 38 C.F.R. § 3.303(b), a veteran who was di-
agnosed with a chronic disease during service, and then
manifests the same chronic disease at a later date, is enti-
tled to a presumption of service connection for the later
manifested diseases, “unless clearly attributable to inter-
current causes.” Section 3.303(b) is constrained by the
chronic diseases listed under § 3.309(a), and “[n]o condition
other than one listed in § 3.309(a) will be considered
chronic.” Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir.
2013) (alteration in original). The list of conditions in
§ 3.309(a) includes "psychoses," the interpretation of which
is in dispute in this case.
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GILES v. MCDONOUGH 5
On June 25, 2014, the BVA rejected Mr. Giles’s CUE
motion on two grounds. First, the BVA stated that regula-
tions in effect as of the April 1987 BVA decision denied Mr.
Giles status as a veteran during his active duty for training
service and as such barred his claim for benefits for his di-
agnosed organic delusional syndrome. Second, the BVA
ruled that the record before the April 1987 BVA showed
that Mr. Giles did not suffer from a chronic psychiatric dis-
ability during his active duty for training service, and thus
barred application of § 3.303(b) to his case. And the BVA
noted that if its decision on the issue of “veteran” status
was incorrect, the error was harmless as even with “vet-
eran” status, Mr. Giles failed to satisfy the requirements of
§ 3.303(b).
Mr. Giles appealed this adverse BVA decision to the
Veterans Court. He argued that the BVA misapplied the
relevant law when it held that Mr. Giles lacked “veteran”
status. With regard to his § 3.303(b) argument, he con-
tended that the law only requires that there be “subse-
quent manifestations of the same chronic disease.” In his
view, because organic delusional syndrome and bipolar dis-
order are both psychoses, whether his organic delusional
syndrome was acute or chronic is irrelevant. In response,
the Veterans Court held that the BVA had insufficiently
explained why Mr. Giles lacked “veteran” status during his
active duty for training service, and the court remanded
the case to the BVA for further review of that issue. The
Veterans Court expressly declined to consider Mr. Giles’s
§ 3.303(b) argument.
On remand, the BVA on July 5, 2017 once again ruled
that the April 1987 BVA decision did not commit CUE. In
response to the Veterans Court’s remand order, the BVA
explained its view that the regulations in effect as of the
April 1987 BVA decision provided that the presumption of
service incurrence of certain diseases, such as psychosis,
did not apply to a period of active duty for training, and as
such a person serving on active duty for training would not
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6 GILES v. MCDONOUGH
be considered a “veteran” during that service. On the
§ 3.303(b) issue, the BVA again concluded that Mr. Giles
failed to show that he had incurred a chronic disease dur-
ing his active duty for training service. Once again, the
BVA noted that any error it may have made in analysis of
the “veteran” status issue was harmless, as Mr. Giles failed
to show he suffered from a chronic disease while on active
duty for training. Mr. Giles timely appealed the adverse
BVA decision to the Veterans Court.
II
Once more before the Veterans Court, Mr. Giles re-
newed his challenge to the BVA determination that he
lacked “veteran” status while serving on active duty for
training. He also argued again that whether his organic de-
lusional syndrome diagnosis was acute, or chronic, does not
matter for purposes of § 3.303(b) because organic delu-
sional syndrome is a psychosis, as is bipolar disorder, and
“psychoses” are defined in § 3.309(a) as chronic diseases.
The Veterans Court affirmed the BVA determination that
Mr. Giles failed to satisfy the requirements of § 3.303(b),
and declined to reach the issue of Mr. Giles’s “veteran” sta-
tus while on active duty for training on the ground that
even if the BVA erred on that issue, the error is harmless
given the rejection of Mr. Giles’s. § 3.303(b) argument.
The Veterans Court noted that throughout the long
history of this case, based on the medical records of the
case, the VA and the BVA treated Mr. Giles’s acute organic
delusional syndrome and bipolar disorder conditions as dis-
tinct, separate and unrelated. The Veterans Court’s deci-
sion, dated July 30, 2019, concluded that organic
delusional syndrome and bipolar disorder are different,
and as such, the regulation’s requirement that the same
chronic disease as shown in service must be shown after
service is not satisfied on the full record. The Veterans
Court noted Mr. Giles’s argument that it was “of no mo-
ment” that his organic delusional syndrome had been
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GILES v. MCDONOUGH 7
diagnosed as an acute episode and his view that the condi-
tion should have been diagnosed as chronic, but found the
arguments only raised a dispute over a factual question,
and that relief under CUE for such a dispute is only avail-
able if there was only one possible answer to the fact ques-
tion, which was not the case regarding the diagnosis of Mr.
Giles’s organic delusional syndrome. Because the full rec-
ord showed both that no chronic disease manifested during
Mr. Giles’s active duty for training service and that Mr.
Giles’s two diagnosed conditions were not the same, Mr.
Giles was denied his avenue of relief through § 3.303(b).
III
Mr. Giles timely appealed the July 30, 2019 decision of
the Veterans Court, raising both the question of whether
the BVA correctly denied him “veteran” status during his
active duty for training service, and his claim for relief due
to CUE in the BVA and Veterans Court decisions that de-
nied him relief under § 3.303(b). Mr. Giles concedes that we
need not reach the “veteran” status issue if we conclude
that there is no error in the Veterans Court’s holding on
the § 3.303(b) issue, as we do. See Oral Argument at 7:42–
8:29 (Dec. 11, 2020), http://oralarguments.cafc.uscourts.go
v/default.aspx?fl=20-1096_12112020.mp3.
Under 38 U.S.C. § 7292, we have jurisdiction to review
and decide questions of law that arise from final decisions
of the Veterans Court. As explained below, this appeal pre-
sents the question of how to interpret § 3.303(b), in connec-
tion with § 3.309(a), when the facts show two diseases both
of which are a psychosis.
IV
At the core of this case is the question of whether “psy-
choses,” as listed under § 3.309(a), is to be interpreted as
referring to a category of diseases or a single exemplary
disease when determining whether a veteran has exhibited
the “same chronic disease” under § 3.303(b). Under Mr.
Case: 20-1096 Document: 41 Page: 8 Filed: 02/17/2021
8 GILES v. MCDONOUGH
Giles’s interpretation, “psychoses” refers to a single, exem-
plary disease and any type of psychosis, such as organic
delusional syndrome or bipolar disorder, is the same dis-
ease. Under the Secretary’s interpretation, “psychoses” re-
fers to a category of diseases, and whether diseases falling
within this category are the same is a factual question out-
side of our jurisdiction.
Mr. Giles argues that his two distinct diagnoses of or-
ganic delusional syndrome and bipolar disorder should be
construed as the “same chronic disease” under § 3.303(b)
because they both are encompassed within the umbrella of
“psychoses.” We reject Mr. Giles’s view and agree with the
Secretary that § 3.309(a) defines “psychoses” as a category
of diseases.
First, “psychoses” is plural, which suggests that it co-
vers multiple conditions that may vary from one another
(e.g., organic delusional syndrome and bipolar disorder). A
reading that treats distinct diagnoses as the same simply
because they fall under “psychoses” would virtually trans-
form the term from the plural to the singular “psychosis.”
This interpretation plainly disregards the distinctions be-
tween different types of “psychoses” by simply classifying
them all as a “psychosis.” Second, such a reading would im-
properly broaden the regulation by eviscerating the re-
quirement that the disease be the “same” or “chronic”
because any disease within the gamut of “psychoses,” even
if different or non-chronic, would be incorporated into
§ 3.309(a) as “psychoses.”
Defining “psychoses” as a category is further supported
by applying similar reasoning to another condition listed
under § 3.309(a): “other organic diseases of the nervous sys-
tem.” This condition is similarly referred to in the plural
and encompasses numerous distinct diseases, such as sen-
sorineural hearing loss and migraines. See, e.g., Standfield
v. Wilkie, No. 18-6408, 2020 WL 957474, at *2 (Vet. App.
Feb. 28, 2020) (recognizing migraines as an organic disease
Case: 20-1096 Document: 41 Page: 9 Filed: 02/17/2021
GILES v. MCDONOUGH 9
of the nervous system); Fountain v. McDonald, 27 Vet.
App. 258, 264 (2015) (stating that the Secretary has made
clear that sensorineural hearing loss is an “organic disease
of the nervous system”). The position that Mr. Giles re-
quests we take, if similarly applied to this condition, would
mean that these distinct diseases (i.e., sensorineural hear-
ing loss and migraines) are the “same” simply because they
are classified as “organic diseases of the nervous system.”
In addition, our treatment of different diseases in this case
further comports with how we have treated different dis-
eases for the purposes of a request to reopen. See Boggs v.
Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008) (holding that
claims based on separate and distinct diagnoses be treated
as separate claims even if the symptomatology was over-
lapping).
We hold that “psychoses” as listed in § 3.309(a) must be
interpreted as a category of diseases as a legal matter, and
any dispute regarding whether Mr. Giles’s organic delu-
sional syndrome is chronic or the same disease as his bipo-
lar disorder is a factual determination that is beyond our
court’s jurisdiction. Thus, the Veterans Court properly de-
termined that the Board did not commit CUE in 1987 when
it found that Mr. Giles was not entitled to a presumption
of service connection for his bipolar disorder dating back to
his 1984 diagnosis of organic delusional syndrome through
§ 3.303(b).
V
For the foregoing reasons, we affirm the judgment of
the United States Court of Appeals for Veterans Claims.
AFFIRMED